Barker v. Leda

• Decision Date: 06 July 1929
• Docket Number: 28,818
• Parties: SARAH F. BARKER, Appellee, v. CHARLES LASHBROOK and LEDA V. LASHBROOK, Appellants
• Court: Kansas Supreme Court

279 P. 12

128 Kan. 595

SARAH F. BARKER, Appellee, v. CHARLES LASHBROOK and LEDA V. LASHBROOK, Appellants

No. 28,818

Supreme Court of Kansas

July 6, 1929

Decided July, 1929.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEEDS--Reservations--Grantor's Interest in Right of Way. The following statement in a general warranty deed immediately after the description by metes and bounds of 120 acres, viz., "less one acre in southeast corner for school purposes and 3.81 acres taken by the Kansas City, Wyandotte & Northwestern railway, containing 117.19 acres, more or less," considered and held not to constitute a reservation in the grantor of the servient estate or interest in the right of way of the railroad, nor to indicate or make it expressly appear that it was the intent to pass a less estate than the whole or entire interest of the grantor therein.

2. RAILROADS--Abandonment of Right of Way--Passing of Dominant Estate. When the right of way of the railroad was abandoned the dominant estate therein reverted or passed to the owners of the land adjacent to such right of way, since their title was derived through the deed described in paragraph one of this syllabus, from which it does not expressly appear that it was the intention to pass a less estate than the whole held by the grantor.

Justus N. Baird, of Kansas City, for the appellants.

James P. Fox, of Kansas City, for the appellee.

OPINION

HUTCHISON, J.:

This case involves the construction of a deed with reference to a part of a railroad right of way through a tract of 120 acres described by metes and bounds and concluding as follows:

"Less one acre in southeast corner for school purposes and 3.81 acres taken by the Kansas City, Wyandotte & Northwestern Railway, containing 117.19 acres, more or less."

The contention is between the grantor in this deed, executed in 1887, and the present owners of a part of the tract lying immediately north of the railroad right of way, which is now abandoned. The proceeding is in the form of an ejectment action brought by the former owner, who executed the deed above described, against the present adjacent owners, who took possession of the right of way when it was abandoned by the railroad.

The case was tried to the court upon an agreed statement of facts, and the trial court held that the above words of exception in the deed excluded from the conveyance to the grantee all and every interest in the 3.81 acres taken by the railroad, and that upon abandonment it reverted to the original owner and not the present landowners abutting on the right of way, who claim title through the above-described and subsequent conveyances.

The defendants appeal and insist that the conveyance of the 120 acres through which the right of way was condemned included all of appellee's interest in and to the servient estate of the right of way, and upon subsequent abandonment the right of way reverted to the adjoining landowners deriving title through the deed in question. Appellee concedes this to be the rule of law unless a specific exception or reservation is made by the grantor, as she maintains was made in this case; that the excepting clause absolutely and clearly excludes this excepted portion from the conveyance, which is further confirmed and clarified by the specific acres excepted and the specific remainder conveyed, as expressed in acres.

Four important Kansas cases, viz., Abercrombie v. Simmons, 71 Kan. 538, 81 P. 208; Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 237 P. 913; Platt v. Woodland, 121 Kan. 291, 246 P. 1017; and Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 273 P. 661, are cited and applied by both parties to the question here involved.

In the Abercrombie case the distinction is readily observed between the facts in that case and this one. There the right of way was acquired by the railroad by deed, which was held to be of the same effect as by condemnation, and was after abandonment conveyed by the railroad to the plaintiff, who brought ejectment action against the owner of the adjoining land. It was not a question between the grantor and the grantees of the adjoining land, as in this case.

In the Bowers case it was held that the owner of a twenty-five-foot strip between a railroad right of way and an abandoned highway acquired title to the middle of the highway, although the deed bounded the land on the highway, but without mentioning it, and stated and limited the quantity of land conveyed.

In the Platt case the extent of the interest conveyed was the question involved rather than the quantity of the land, it being a contingent interest. And it was held that a quitclaim deed conveyed all the interest of the grantors, intent to pass a lesser interest not expressly appearing or being necessarily implied from the terms of the grant.

The Roxana case is more nearly in point, because it makes a specific exception of the railroad right of way, but does not designate the acres excepted and the acres remaining, as in this case. In that case it was held:

"Deeds of a quarter section of land in which the numerical descriptions were followed by the expressions 'less railroad right of way' and 'excepting railroad right of way' of a named railroad, interpreted, and held to convey the interest of the grantors in the right-of-way tract." (Syl. P 2.)

In the Roxana case and the Platt case reference is made to R. S. 67-202, which is as follows:

"And every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant."

In the Platt case the word "estate" in this statute was construed to mean "interest" and to include "whatever the grantor could convey."

The...